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Creative Montessori Learning Centers v. Ashford Gear LLC

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SUBMITTED SEPTEMBER 9, 2011

Before EASTERBROOK, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

The defendant has asked us for permission to appeal from the district judge’s certi- fication of a class in a suit under the Telephone Con- sumer Protection Act (as amended by the Junk Fax Pre- vention Act of 2005), 47 U.S.C. § 227. See Fed. R. Civ. P. 23(f). The Act imposes, on anyone who sends an unsolic- ited fax advertisement, statutory damages of $500 per fax, which can be trebled if the court finds that the viola- tion was willful or knowing. 47 U.S.C. §§ 227(b)(1)(C), (b)(3). Such “junk faxes” consume the recipient’s paper and ink without his consent and are thus a source of justified though usually minor irritation to recipients not interested in the advertised product or service. Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 639 (4th Cir. 2005). The named plaintiff in this case is complaining about two one-page faxes that, as we’ll see, it may never even have received. Anyway, the statute, with its draconian penalties for multiple faxes, is what it is.

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